The opinion of the court was delivered by: James S. Gwin, United States District Judge:
[Resolving Doc. Nos. 11, 12, 14, 15]
In this challenge to the conditions of and procedures used in detaining an American citizen at a United States military compound in Iraq, Plaintiff John Doe sues former Defense Secretary Donald Rumsfeld, other high-ranking United States government officials, and several unidentified United States officials and agents. He alleges multiple constitutional violations in his seizure and detention. [Doc. 4.]
Defendant Rumsfeld moves to dismiss Doe's complaint for failure to state a claim. [Doc. 11.] The government moves to dismiss for lack of subject matter jurisdiction and for failure to state a claim; it also moves for a more definite statement as to Doe's right to travel claim. [Doc. 14.] For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the Defendants' motions to dismiss. In addition, the Court DENIES the government's motion for a more definite statement.
For the purposes of the pending motions to dismiss, the Court accepts as true the following factual allegations made in Plaintiff John Doe's complaint:
In December 2004, Doe, an American citizen and United States Army veteran, traveled to Iraq as a civilian employee of an American-owned defense contracting firm. Doe went to work as an Arabic translator and was detailed to a United States Marine Corps Human Exploitation Team operating in the United States military bases along the Iraq-Syria border. The Human Exploitation Team, a Marine Corps intelligence unit, gathered and developed military intelligence through local Iraqi contacts. [Doc. 4 at 12.] Doe's assigned team comprised Doe, two sergeants, and one lieutenant. The Team operated in Iraq's Anbar Province, a highly volatile region along the western border of Iraq. [Id.]
During his tenure in Iraq, Doe worked with the Human Exploitation Team to establish contact with Iraqi Sheikh Abd Al-Sattar Abu Risha. [Doc. 4 at 2.] Doe maintains that, as the Human Exploitation Team's translator and as the first American to open direct talks with Al-Sattar, he served as the main point of contact for all communications between the Sheikh and the Team. Doe also contends that through a series of highly secretive meetings with Al-Sattar, the Sheikh pledged to support the United States and ultimately became "one of America's staunchest allies" by providing the United States military with information to help control insurgencies in Anbar. [Doc. 4 at 2, 13.]
On October 20, 2005, Doe was transported to "Camp Korean Village," a Marine Corps support base, to prepare for his scheduled November 5, 2005 departure from Iraq to the United States for annual leave. [Doc. 4 at 14.] When Doe arrived at Camp Korean Village, a Navy Criminal Investigative Service (NCIS) agent questioned him about his work with the Human Exploitation Team. In response to the NCIS agent's questions, Doe says he provided a general description of his work with the Team.
On or about November 4, 2005, Doe was transported to Al Asad, a military airbase in Anbar and Doe's scheduled point of departure from Iraq. Soon after his arrival at Al Asad, Doe was taken to an interrogation room where three NCIS agents and one other official questioned him for approximately four hours. [Doc. 4 at 14-15.] The agents denied Doe's requests to have a representative from his military company or the Human Exploitation Team present during the interrogation. They also denied his requests for an attorney. Doe says he refused to answer questions, citing a concern for the confidentiality of sensitive information he had learned during his work on the Team. The agents searched and confiscated Doe's luggage. They also handcuffed and blindfolded Doe, and, he says, kicked him repeatedly in the back. One agent threatened to shoot Doe if he tried to escape. [Doc. 4 at 15.]
Doe was then transported to the airport at Al Asad, where he was helicoptered to a point approximately thirty minutes away and deposited into the custody of the United States Marine Corps. The Marines strip-searched Doe and placed him in complete isolation in a small cell.
After seventy-two hours of solitary confinement, Doe says he was flown, blindfolded and hooded, to Camp Cropper, a United States military facility near Baghdad International Airport dedicated to holding "high-value" detainees. [Doc. 4 at 16.]
Government officials detained Doe in a military jail at Camp Cropper for more than nine months. During the first three months of his detention, Doe was held incommunicado in solitary confinement. On infrequent occasions, Doe was briefly allowed outdoors for short periods after midnight.
When prison officials took Doe out of isolation, they moved him into a cell housing suspected Al Qaeda and Arab Socialist Ba'ath Party members hostile to the United States. Prior to moving Doe, the officials publicized Doe's affiliation with the Department of Defense and his work for the Human Exploitation Team, thereby encouraging the Al Qaeda and Ba'ath Party detainees to physically attack Doe. Later, prison guards moved Doe into a cell with seven suspected Al Qaeda members, encouraging additional attacks. Doe says he lived in constant fear for his life. [Doc. 4 at 18-19.]
Doe further alleges that the Camp Cropper prison guards tortured him using "psychologically-disruptive tactics designed to induce compliance." [Doc. 4 at 8.] Among other things, Doe says they exposed him to extreme cold and continuous artificial light, blindfolded and hooded him, woke him by banging on a door or slamming a window whenever they observed Doe trying to sleep, and blasted heavy metal or country music into his cell at what Doe calls "intolerably loud volumes." [Doc. 4 at 8, 17.] One guard repeatedly choked Doe. [Doc. 4 at 18.]
Government officials also repeatedly interrogated Doe, though they never permitted Doe the assistance of counsel or any other representative. Doe says he consistently denied any wrongdoing and responded truthfully to the questioning but his interrogators continued to threaten him and accuse him of lying. [Doc. 4 at 19.]
During Doe's detention at Camp Cropper, government officials held two Detainee Status Board hearings to evaluate whether Doe should keep his preliminary designation as a "security internee" or instead be designated an "innocent civilian" or an "enemy combatant." [Doc. 4 at 19-20.] A letter from the Detainee Status Board President informed Doe that his first status hearing would be held on or after November 30, 2005. Prior to this first hearing, the Board told Doe that he did not have the right to an attorney and could only present witnesses and evidence "reasonably available" to him at Camp Cropper. [Id.] Doe claims that the Detainee Status Board denied his requests for a Judge Advocate General's Corps attorney or to call his Human Exploitation Team members as witnesses.
The Status Board held Doe's first hearing on or about December 22, 2005. [Id.] During this short hearing, Doe was not permitted to view evidence against him, to hear testimony against him, or to cross-examine witnesses. After the hearing, the Board ultimately deemed Doe a threat to the Multi-National Forces in Iraq and authorized his continued detention. [Doc. 4 at 20-21.]
In July 2006 and after detaining Doe for more than an additional six months, the Detainee Status Board held a second hearing regarding Doe's status as an enemy combatant, security internee, or civilian. The Board once again denied Doe an attorney and stopped him from presenting evidence not "reasonably available" to him at Camp Cropper. Doe was not permitted to present evidence from his military company or the Human Exploitation Team with which he had worked. This second hearing lasted much longer than the first, and Doe faced more extensive questioning about his work with Al-Sattar. In addition, Doe was questioned about his treatment at Camp Cropper and about what he might do if released from the camp. [Doc. 4 at 22.]
The next month, on or about August 10, 2006, Doe was transported, shackled and blindfolded, to Baghdad International Airport, where officials gave him a new United States passport and put him on a military flight to Jordan. [Doc. 4 at 25.] Doe ultimately returned to the United States.
Doe has never been formally charged with a crime. He claims that his personal property has not been returned to him and that he has been placed on a "blacklist" that prevents American military contracting firms from hiring him. Doe also alleges that he has been put on a terrorist "watch" list, leading United States Customs officers to interrogate him and search his belongings when he returns from international travel.
On November 3, 2008, Doe filed the instant suit, challenging the conditions of and procedures used during his confinement, his placement on various blacklists, and the failure to return his seized property. Doe brings this action against Donald Rumsfeld, former Secretary of the United States Department of Defense, in his individual capacity, alleging substantive and procedural due process violations, as well as denial of access to courts and counsel. Doe argues that Rumsfeld personally approved the use of torturous interrogation techniques on a case-by-case basis and that Rumsfeld maintained control over the release or continued detention of United States detainees. [Doc. 4 at 40.] Ultimately, Doe says, Rumsfeld authorized the policies and actions that resulted in violations of Doe's substantive and procedural due process rights, as well as the denial of Doe's access to courts to challenge his detention. [Doc. 4 at 36.] Doe asks this Court to hold Rumsfeld personally liable by allowing a money damages remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for these alleged constitutional violations.
Doe also sues Defendants Janet Napolitano, Secretary of the United States Department of Homeland Security, Robert S. Mueller III, Director of the Federal Bureau of Investigation, Alan Bersin, Customs and Border Protection Commissioner, and John Morton, Assistant Secretary of the United States Immigration and Customs Enforcement, in their official capacities, to secure the return of the property seized upon his detention and for alleged violations of his right to travel.*fn1
Finally, Doe brings claims against unidentified officers or agents of the United States, alleging: (1) false arrest, (2) unlawful detention and conditions of confinement, (3) torturous and unlawful interrogation, (4) denial of the right to counsel and the right to confront adverse witnesses, (5) denial of the right to present witnesses and to have exculpatory evidence disclosed, (6) denial of access to courts and to petition, (7) blacklisting, and (8) conspiracy.*fn2
The Defendants now seek dismissal of Doe's claims under Rule 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state claims upon which relief can be granted.*fn3
[Doc. 11; Doc. 14.] The government also separately moves for a more definite statement. [Doc. 15.]
Federal Rule of Civil Procedure 8 provides the general standard of pleading and only requires that a complaint "contain . . . a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 does not require "detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations omitted). In deciding a motion to dismiss under Rule 12(b)(6), "a court should assume the veracity" of "well-pleaded factual allegations," and construe reasonable inferences drawn from those factual allegations in the plaintiff's favor. Id. at 1950; see also District of Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C. 1987). Courts need not, however, accept a plaintiff's legal conclusions as true. Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 129 S. Ct. 1937 at 1949 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility requirement is not a "probability requirement," but requires "more than a sheer possibility that the defendant has acted unlawfully." Id.
Although motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) are similar in many respects to those under Rule 12(b)(6), a 12(b)(1) motion presents a distinct threshold challenge. Such motions "will be successful only if the plaintiff fail[s] to carry [his] burden of showing by a preponderance of the evidence that the Court has the statutory and constitutional power to adjudicate the claims." In re Iraq and Afghanistan Detainees Litig., 479 F. Supp. 2d 85, 93 (D.D.C. 2007) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)), aff'd Mohammed v. Rumsfeld, --- F.3d ----, 2011 WL 2462851 (D.C. Cir. June 21, 2011). In evaluating whether the plaintiff has carried this burden, courts may consider matters beyond the pleadings, but must still review the complaint liberally and accept all reasonable inferences favorable to the plaintiff. See Davis v. United States, 569 F. Supp. 2d 91, 94 (D.D.C. 2008).
Additionally, a district court may require a more definite statement, on a defendant's motion under Rule 12(e), where a pleading is "so vague or ambiguous that the [defendant] cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). "Rule 12(e) provides defendants with a remedy for inadequate complaints that fail to meet the minimum pleading standard set forth in Rule 8(a)." McQueen v. Woodstream Corp., 244 F.R.D. 26, 34 (D.D.C. 2007). However, such motions are generally disfavored. Rahman v. Johanns, 501 F. Supp. 2d 8, 19 (D.D.C. 2007). "Given the liberal nature of the federal pleading requirements, courts are reluctant to compel a more definite statement . . . [for] fear that such action will become a substitute for discovery." Potts v. Howard Univ., 269 F.R.D. 40, 42 (D.D.C. 2010).
III. Cause of Action under the Detainee Treatment Act
Doe first argues that the Detainee Treatment Act of 2005 ("DTA"), 42 U.S.C. §§ 2000dd et seq., gives him either an express or implied private right of action to challenge the conditions of his nine-month detention at Camp Cropper. [Doc. 4 at 27; Doc. 33 at 10-11.] However, because the language of the Act is silent as to a private right of action for citizens, and because courts must refrain from inferring statutory causes of action in the absence of clear statutory intent, Doe cannot bring his claims under the DTA.
Doe relies on the language of the DTA, which proclaims that "[n]o individual in the custody or under the physical control of the United States government . . . shall be subject to cruel, inhuman, or degrading treatment or punishment." 42 U.S.C. § 2000dd(a). The Act further defines "cruel, inhuman, or degrading treatment or punishment" to include acts prohibited by the Fifth, Eighth, and Fourteenth Amendments. Id. This language, however, contains no express provision for a private cause of action that would permit plaintiffs like Doe to sue under the DTA. Detainees Litig., 479 F. Supp. 2d at 107 n.23.
Nor may the Court, without an express statutory right of action, imply a private cause of action under the Act. Rather, it is for Congress to create private rights of action to enforce federal statutes. Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (federal courts may not raise up a cause of action to enforce statutory law where the statute itself has not created one). Though Doe contends that the Act's reference to "civil action" and "civil . . . liability or damages" evinces a statutory intent to create a private remedy, this argument runs counter to the rest of the Act's language. See id. at 286("The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy."). Such references, to the extent they even contemplate private civil actions, pertain only to suits involving the "detention and interrogation of aliens," 42 U.S.C. § 2000dd-1(a), and do not raise a cause of action for citizen detainees. Accordingly, because there is insufficient indication that Congress intended to create a private right of action for citizens to enforce the DTA, the Court declines to infer such a cause of action and grants Defendant Rumsfeld's motion to dismiss to the extent Doe's claims rest on alleged violations of the DTA.
Doe next urges this Court to recognize a private right of action under Bivens v. Six Unknown Named Agents for money damages based on the constitutional violations alleged in his complaint. 403 U.S. 388.
In Bivens, the United States Supreme Court established that where federal officials violate a constitutional right, victims of that violation have a private cause of action for money damages against the officials in federal court, even if no statute explicitly creates such a cause of action. Id. at 396. The Bivens Court allowed a suit against federal narcotics agents based on alleged Fourth Amendment violations, finding that the plaintiff's cause of action could be implied directly from the face of the Constitution. The Court held that, as a universal premise, "'where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief.'" Id. at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)); cf. Bush v. Lucas, 462 U.S. 367, 374 (1983) (finding that 28 U.S.C. § 1331's general jurisdictional grant to decide cases arising under the Constitution not only grants federal courts the authority to decide whether a constitutional violation occurred, "but also the authority to choose among available judicial remedies in order to vindicate constitutional rights." (citing Hood, 327 U.S. at 684)). The Supreme Court has since recognized that, in addition to compensating victims, a fundamental purpose of Bivens is to deter individual officers from committing constitutional violations. See Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (citing FDIC v. Meyer, 510 U.S. 471 (1994)).
In allowing for a damages remedy directly under the Constitution, the Bivens Court noted that the case before it "involve[d] no special factors counseling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S. at 396. In Wilkie v. Robbins, the Supreme Court clarified this and held that a remedy under Bivens "is not an automatic entitlement." 551 U.S. 537, 550 (2007). Rather, the Wilkie Court said, courts must follow a two-step process in deciding whether to recognize a Bivens remedy. First, they must determine "whether any alternative, existing process for protecting the interest" exists. Id. (citing Bush, 462 U.S. at 378); see Bivens, 403 U.S. at 397 (recognizing that implied remedies under the Constitution may be unnecessary upon "explicit congressional delegation" that claims "must instead be remitted to another remedy, equally effective in the view of Congress."). Second, courts must independently determine whether "any special factors" counsel judicial hesitation. Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at 378). If alternative remedies or special factors counseling hesitation are present, a damages remedy may not be implied under Bivens.
Rumsfeld argues that allowing monetary damages in this case would constitute a "radical extension of Bivens." [Doc. 11 at 16 (citing Detainees Litig., 479 F. Supp. 2d at 103-107).] Specifically, Rumsfeld says that recognizing a Bivens action here would ignore several special factors counseling hesitation that are rooted in institutional competence and practical national security concerns. [Doc. 11 at 15-26.] Because, however, this Court concludes that no remedy outside of Bivens exists for plaintiffs like Doe and that no special factors counsel judicial hesitation, the Court finds that Doe may maintain a federal cause of action against Rumsfeld under Bivens.
A. Availability of a Bivens Cause of Action
Rumsfeld first argues that this Court should refuse to recognize a Bivens remedy here because the Supreme Court disfavors Bivens actions and has cautioned against ...